Cultural Property Law and Restitution

Cultural Property Law and Restitution

A Commentary to International Conventions and European Union Law

IHC Series in Heritage Management

Irini A. Stamatoudi

This invaluable book, for the first time, brings together the international and European Union legal framework on cultural property law and the restitution of cultural property. Drawing on the author’s extensive experience of international disputes, it provides a very comprehensive and useful commentary.

Chapter 3: European Union Law

Irini A. Stamatoudi

Subjects: law - academic, european law, intellectual property law, public international law

Extract

3.1 FREE MOVEMENT OF GOODS AND THE ‘NATIONAL TREASURES’ EXCEPTION 3.1.1 The Provisions on the Free Movement of Goods 3.1.1.1 Free movement of goods The principle of the free movement of goods is one of the fundamental principles and constituent elements of the Single Market and of European Union law. The Member States’ national markets should be seen as parts of an integrated whole, a Common Market, which functions in the same way as a national market and where any kind of restrictions on the free movement of goods are prohibited. Restrictions, imposed by national laws on trade relating to cultural goods, run the risk of being considered restrictions within the meaning of articles 34 and 35 of the Treaty on the Functioning of the European Union (TFEU) given, of course, the fact that cultural treasures fall within the notion of ‘goods’ according to article 28(1) TFEU1 and there is no express exception for them. Article 34 TFEU provides that ‘Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States’. Equivalent to article 34 TFEU is article 35 in relation to exports: ‘Quantitative restrictions on exports, and all measures having equivalent effect, shall be prohibited between Member States’. In 1968, in Commission v. Italy,2 the Court of Justice of the European Union clarified that even unique works of art are ‘goods’ within the meaning of the TFEU. More specifically it was provided that even unique works of art should be held to...

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